Balkinization  

Thursday, July 05, 2007

Daryl Levinson thesis, revisited once more

Sandy Levinson

As readers may recall, I'm a big fan of Daryl Levinson's argument that the Madisonian system of separation of powers cannot withstand the reality of party politics. Or, as he and his co-author Rick Pildes put it in a subsequent Harvard Law Review article, "Separation of Parties, Not Powers." So we have ever more data points to test the thesis.

1) The no-confidence vote re Alberto ("Fredo") Gonzales. Isn't this a knockdown proof of the Levinson thesis? There appears to be no other explanation than party loyalty for the Republican's unwillingness even to allow a vote on the matter. Do all of those who voted against allowing a vote really have confidence in the most egregious Attorney General at least since John Mitchell--and Mitchell, who went to prison, did not destroy the Department of Justice in the way that Gonzales has done.

2) The response to the Libby commutation. Can any devotee of "law and order" and "no amnesty for lawbreakers" feel comfortable with a decision that reeks of elemental corruption? Why has no Republican stepped up and criticized Bush? Can it possibly be the case that every single Republican shares the President's view? Or are at least some Republicans keeping silent lest they be perceived as insufficiently loyal to their party leader? For sake of argument, I will concede the sincerity of people like David Brooks, though I find his argument jejune. But even if reasonable people can differ, would one expect to find no Republican critics (save for Bruce Fein, who continues, rightly, to warn us of the "monarchist" tendencies in the Bush Administration)? Where is the Republican analogue to Michael Kinsley, who goes out of his way to join the Scooter defense team from the left, with the integrity to criticize the commutation from the right (and, unlike the Wall Street Journal, not because Bush didn't out-and-out pardon him)?

3) The immigration fiasco. This might causes greatest difficulty for the Levinson thesis, since Republicans deserted their notional leader in droves. But let me suggest that the explanation has nothing to do with Madison's argument--i.e., concern for protecting the prerogatives of Congress against a rampaging executive--but rather another part of Levinson's argument (derived from David Mayhew), that members of Congress are driven both by party loyalty (see 1&2) and by the desire to be returned to office. To the extent that "the base" is furious at the idea of immigration reform that includes any kind of amnesty (and one should recognize that the compromise bill did include what speakers of ordinary English would describe as an amnesty provision), and given the propensity of "the base" to exact revenge in party primaries, loyalty to the party leader takes second place to loyalty to one's own prospects for re-election.

Comments:

One counter-instance invalidates a theory (i.e., Popper's falsifiability criterion). Clearly, "party politics" does not keep political powers separate. But then, the Founders never anticipated "party politics." Ergo, the Electoral College.

Political parties "evolved" spontaneously (socially confirming Darwin and Hayek). So, the option is to (i) eliminate party politics, OR (ii) eliminate separation of powers? In this hypothetical disjunction Either A or B. B. Therefore, not-A.

Separation of powers is far more valuable than political parties. If, and I hope when, we become legislatively unicameral (eliminate the Senate), we might prohibit members of Congress, Presidents, and Justices from "telling" their political party alliance, or simply not "allow" alliances, affiliations, memberships, to be more than just a "set of characteristics" of each individual member. We still may get less "separated powers," more political independence, and eliminate the "undemocratic Senate," but then desire to retain the Electoral College.

No political parties? Well, none identified on ballots. We do not identify their religious, ethnic, sexual, etc., associations on "ballots," why not exclude "political" affiliations? Then, voters would have to vote for the best "individual," not the best "party." I think it's worth thinking about.

Then, we might tweak the Constitution to require: All laws must be universalized. Ergo, no "special interest" legislation, an idea I properly attribute to Hayek. Add "fixed terms" to the judiciary, proportional representation to the legislature, and Democracy's Self Rule improves.
 

The response to the Libby commutation. Can any devotee of "law and order" and "no amnesty for lawbreakers" feel comfortable with a decision that reeks of elemental corruption? Why has no Republican stepped up and criticized Bush? Can it possibly be the case that every single Republican shares the President's view?

Well, the Washington Times did, though I guess that makes it the exception which proves the rule. The rest of the Republican army marches in tighter lockstep than the Wehrmacht ever did.
 

Prof. Sandy Levenson sez --

"I will concede the sincerity of people like David Brooks, . . . ."

Oh, come on; you know better. You know what frustrates about professors -- including those who hypothesize when instead concrete action is needed? The polite insincerity which pretends a person is sincere when they know that person is nothing of the kind. Brooks, as example, is a conscious propagandist. If ther is any sincerity at all in his presentation, or view, it is his commitment to the ego-trip of being famous. And his writing sucks.

What sort of examplar for vulnerable youth -- especially those who are university students, even more especially those who are law school students -- is a person who "politely" dissembles (in my view, every form and degree of lying is rude; and damaging to the social cohesion, made solely of trust, essential to a functioning democracy) in collegial respect for persons not deserving of respect?

It's the same sort of toxic pollution that infects the media, beginning with the White House press core. It dare not tell the truth for fear of offending -- whom? Offending the liar. But isn't that the point of telling the truth? -- offending, and exposing, the liar as being a liar?

Gad, I'm tired of dishonest collusions in false agreements for the sake of a hollow civility! As I'm tired of an unlimited inclusivneness and tolerance which -- as said by some WWII era philosopher or social scientist as a warning -- ends up being the cause of the destruction of democracy by the totalitarians.

Do totalitarians deserve a free, uncontested-by-rudeness voice in a democracy they intend to destroy? Being that they are characteristically incapable of civility, is it wise to treat them as if they were genteel colleagues equally deserving of respect with the truthars who insult the lies and lairs? Isn't that the same false eqiuivalency for which we condemn the destructively non-confrontational media?
 

Well, the Washington Times did, though I guess that makes it the exception which proves the rule. The rest of the Republican army marches in tighter lockstep than the Wehrmacht ever did.

# posted by Mark Field : 3:19 PM

By September we'll begin to see Republicans falling all over themselves and each other to get on the side of the line opposite Bushit. As example, 21 Republican Senators are facing re-election -- and their prospects are about as good as that of a frog halfway down the throat of a garter snake.

And Hagel has made it safe for other Republicans to turn against Bushit on the war. Even without counting that disaster, Bushit's "legacy" was characterologically predictable: everything he's touched he's destroyed.

The problem with the Congress at present is not that the Democrats are spineless, or any of the other unproductive/destructive name-callings against them. For one, the problem is the foot-dragging and obstructionist Republicans. For another, not enough Democrats were elected in 2006. We need to elect more Democrats to Congress.

Certainly the Congress as presently constituted must continue to investigate, and press the issues regardless Bushit, et al.'s contempt for everything reasonable from reason on down.
 

Professor Levinson:

1) The no-confidence vote re Alberto ("Fredo") Gonzales. Isn't this a knockdown proof of the Levinson thesis? There appears to be no other explanation than party loyalty for the Republican's unwillingness even to allow a vote on the matter.

Apart from the fact that Congress has no constitutional power to pass no confidence resolutions against the AG? What nonsense.

2) The response to the Libby commutation. Can any devotee of "law and order" and "no amnesty for lawbreakers" feel comfortable with a decision that reeks of elemental corruption?

What does this have to do with separation of powers?

What corruption? Libby was convicted of perjury because a jury after several days decided that they believed the memory of a reporter over that of Libby.

Why has no Republican stepped up and criticized Bush? Can it possibly be the case that every single Republican shares the President's view?

OK, I will step up and repeat what I have posted in the past. Libby should have received what Martha Stewart received (and Clinton should have received) - about 6 months in prison. The 2.5 years was overkill for the crime and, if I were President, I would have commuted the sentence after Libby served 6 months.

However, I do agree with Bush in that multiple felony convictions, a $250,000 fine and two years probation does constitute a punishment. It is worse than Sandy Berger received for stealing and destroying classified documents and far more than Clinton ever endured for his multiple perjuries.

3) The immigration fiasco. This might causes greatest difficulty for the Levinson thesis, since Republicans deserted their notional leader in droves. But let me suggest that the explanation has nothing to do with Madison's argument--i.e., concern for protecting the prerogatives of Congress against a rampaging executive--but rather another part of Levinson's argument (derived from David Mayhew), that members of Congress are driven both by party loyalty (see 1&2) and by the desire to be returned to office. To the extent that "the base" is furious at the idea of immigration reform that includes any kind of amnesty (and one should recognize that the compromise bill did include what speakers of ordinary English would describe as an amnesty provision), and given the propensity of "the base" to exact revenge in party primaries, loyalty to the party leader takes second place to loyalty to one's own prospects for re-election.

The comprehensive amnesty bill infuriated far more the the GOP base. 70% of respondents to polling on the issue opposed the bill. However, the opportunity to suck up to future immigrant voters motivated more than a few Senators to ignore their own constituents - at least initially.
 

By September we'll begin to see Republicans falling all over themselves and each other to get on the side of the line opposite Bushit.

I'll believe this when I see it. I do agree with your comments about Congress, however.
 

I am grateful to be informed of the Washington Times editorial.

Incidentally, as Thomas Kuhn so memorably demonstrated in The Structure of Scientific Revolutions, the Popper fasifiability criterion does not, for better or worse, describe the actual working of science (or, even more, social science, which rarely involves statements of the All X's are Y's form, instead of, there is a strong correlation between X and Y).

I'm actually not a big fan of David Brooks. But I see no particular reason to traduce him personally. It's actually no great compliment to say that someone is "sincere" with regard to a particular view.
 

The comprehensive amnesty bill infuriated far more the the GOP base. 70% of respondents to polling on the issue opposed the bill.

I assume you're referring to the CNN/Opinion research poll? You're close to the right number, sort of, if you arrive at the number 70% because 30% of respondents said they favor the bill.

However, 15% said they opposed it because it didn't go far enough. 4% didn't know why they opposed it, they just did. And 22% weren't clear enough on the bill to have an opinion one way or the other.

Summed up:

45% in favor of immigration reform, a third of which want even more help for illegal immigrants than the Senate's bill would have provided.

32% against the immigration bill.

22% undecided.

Now, you do realize how these numbers undermine your implication that 70% of the American public opposed the bill because it provided "comprehensive amnesty," don't you?
 

Actually, Prof. Levinson, calling Brooks' recent Libby column sincere is quite a bit less than a compliment. I would have been much more impressed, though no more satisfied, to discover that it was just another strategic ideological maneuver, given its utter hollowness.

Re: Popper v. Kuhn: It doesn't help that Popper himself had extraordinary difficulty pointing out even a single unambiguous instance of his falsificationism at work in natural science. The relationship between observation and theory is nowhere near direct enough to back up straightforward falsificationism.
 

I think it is going to far to say that the Founders did not foresee political parties. They regarded parties within the legislature (albeit less stable and enduring that today's parties) and an inevitable evil. But they expected the executive to be above partisan politics. (Rather the way some people to this day expect the Supreme Court to be above such things). Once the President became a partisan office, it invalidated many of their assumptions about how our government would work. The vast increase in executive power that has taken place between then and now has changed many others.
 

However, the opportunity to suck up to future immigrant voters motivated more than a few Senators to ignore their own constituents - at least initially.

Interesting, that following the wishes of one's constituents (and especially the "base") is proper representation, but giving thought to non-voters who might potentially become voters is shameless pandering.
 

Interesting, that following the wishes of one's constituents (and especially the "base") is proper representation, but giving thought to non-voters who might potentially become voters is shameless pandering.

Apparently legislators must never, under any circumstances, think of the children.
 

"Bart" sputums --

"1) The no-confidence vote re Alberto ("Fredo") Gonzales. Isn't this a knockdown proof of the Levinson thesis? There appears to be no other explanation than party loyalty for the Republican's unwillingness even to allow a vote on the matter.

"Apart from the fact that Congress has no constitutional power to pass no confidence resolutions against the AG? What nonsense."

Given the fact that the three branches of gov't are co-equal; and given the fact that Bushit, et al., claim to be wholly exempt from the rule of law during wartime even though it isn't wartime, then Congress too is wholly exempt from the rule of law, so it too can do anything it damn well pleases.

Take a gander: what's good for the goose . . .
 

I'm actually not a big fan of David Brooks. But I see no particular reason to traduce him personally. It's actually no great compliment to say that someone is "sincere" with regard to a particular view.

# posted by Sandy Levinson : 4:43 PM

That he is a liar is sufficient reason to traduce him, personally and in all other ways possible, and at every opportunity -- even when asleep, if one can manage it, so long as one doesn't self-induce nightmares beyond one's ability to handle them.

I've never considered the appelation "sincere" to be a negative -- so long as it was true.

I'm quite serious, of course: until we get back to the standard of reason that allows us to call a liar a liar, we will continue to have a majority population which isn't clear on much of anything at all, except that a lie and a truth are equal in that all that exists is opinion, and all opinions are equal, so whatever the liar says is as true as anything else . . .

Doubtless my attitude derives from being a lifelong Twain fan. "A lie is halfway around the world before the truth can get its shoes on." That's more than enough lead time without adding silent contemplation of the symetry of the lie to it.
 

Apparently, someone has been misled by a chimera. Prof. Kuhn's claim was assailed; Popper's survived. Oh, about thirty years ago. No one claims scientists proceed with the falsifiability criterion, it's merely a logical entailment of the verification criterion of the Scientific Method, a self-evident analytic truth of entailment. If a theory cannot be falsified, it cannot be verified. That's a logical entailment. Kuhn could not assail it, as it is necessarily true, or science's claims could never be. It was used, by the way, to defeat physicists' String Theory because why? That's the Answer! Not because it could not be verified, even though true, but because it was incapable of being falsified, which restates the same truth in a stronger direction and tighter "fit." No scientist denies it. They may quibble if they want government grants, where non-science is pressed, but they cannot deny it. It is logically necessary, if science is science, the falsifiability criterion is entailed necessarily. Otherwise, it's not science, but "something else." Popper still rocks, even if law professors are still negotiating slippery slopes out of contractual loops.
 

While I respect Prof. Levinson, his comments validate a widely-observed perspective, evident in recent court decision (as well as his response to my comment): Jurists don't know (i) language and its uses, (ii) hermenuetics or interpretative theory, (iii) or the laws and rules of reasoning. Scaning the enormous curriculum of Hastings Law School, San Francisco (ranked 36th), NOT ONE course is taught in any of the above disciplines. See for yourself at http://gayspecies.blogspot.com/2007/07/courts-law-casuistry-sophistry.html
 

The mention of John Mitchell reminds one of the distance we have covered since 1974, and the extent to which market like forces have coopted political participants.

John Mitchell, a law partner of Nixon's at Mudge Rose, was a total political operative, yet even he resigned from his position as AG to resume his overt political activities with CREEP (the Committee to Reelect) in the '72 election.

When Judge John Sirica sentence the Scooter Libby of Watergate, James McCord to 30 some years, Nixon could only watch it happen. It didn't seem to occur to anyone that he might just short circuit McCord's subsequent bean spilling by commuting/pardoning the man. It wouldn't have been cricket.

Even when Nixon was discussing with Haldeman, Erlichman, and Dean, a payoff to Hunt et al ("$350,000...it could be done"), the idea was that the WH would make the payoff. There was no one like the American Enterprise Institute etc., to arrange the indirect buyout, as was done yesterday with Scooter.

We have come a long way.
 

Gay Species: If I remember my Popper correctly, his position is that no theory can be verified, period, regardless of whether it is falsifiable or not. That's what it means to be a falsificationist: There are conjectures that have been refuted (falsified), and there are conjectures that haven't yet been; that's it.

If you want to preserve a sense in which some theories are better confirmed than others that goes beyond "Well, theory X hasn't been falsified yet," it might serve your point better to say that theories stand in some more-or-less direct relationship with possible evidence that is in principle observable. This lets us say what's wrong with e.g. string theory without having to pin ourselves down to the falsificationist notion that there is at least one "crucial" piece of evidence for any and every genuine theory such that (a) that crucial evidence differentiates it completely from rival theories, and (b) the theory can't account at all for what has happened should the evidence turn out differently. Something like this is what I take Imre Lakatos to be doing.

What any of this has to do with the Daryl Levinson thesis, or your implication that jurists are unaware of how to reason, is a bit beyond me.
 

See, supra., first comment
 

Professor Levinson,

If I might suggest an alternative read on the problem: it is ideology that denies the necessity of judgment, and not political parties that are destructive not only to divided government, but all modern government. In a way, a diverse array of modern authors, Walter Lippman, E.L. Gombrich, Thomas Kuhn, Hannah Arendt, etc., have identified the same problem: the relationship between appearance and reality is exceptionally difficult. When it comes to self government, Lippman's writing in "Public Opinion" on stereotyping and Arendt's writing about ideology in "On Revolution" and "Lying in Politics" concludes that our ability to manipulate the "shortcuts" of understanding the world has far outstripped our capacity to actually understand it, even by those who are doing the manipulation. In particular, Arendt suggests that the Russian Revolution, the French Revolution, Totalitarianism, and the US involvement in Vietnam all share a mentality whereby when the facts of what was happening did not match up to the theory, it was assumed that the facts were no good.

In short, I would suggest that perhaps the problem is not with the structure of our government, but with the nature of our times. If it is the case that the problem lies deeper than our constitutions and is actually found in our own capacity for judgment, it may suggest entirely different reforms altogether. As an aside, I don't think that Professor Levinson's Kuhnian perspective and the Popper falsification standard talked about by commenters is necessarily at odds. On the level of individual judgment, Popper's rubric looks like what philosophers call "folk epistemology," that, as Misak holds, to "hold that p is true is to believe that p is a belief that cannot be improved upon" and all of the commitments that go along with that. On the level of social acceptance of an idea, to hold that something is true for the best possible reasons works differently. It is, in short, political... which is what Kuhn very persuasively argues.
 

Steven @ 11:15 am: Intriguing. I'm still sorting through some of what you're saying. For instance: What is it about "the nature of our times" that gives rise to "the problem" Levinson is raising regarding the implementation of a government with separated powers? Is it just the pervasiveness of ideology, or is it something more (i.e., something to do with "our capacity of judgment" aside from the presence of ideology)?

Also, I'm still trying to catch up to your point that the assertion that beliefs need the support of the best possible reasons is somehow "political." Do you mean "political" in the sense of "relative to the contingent epistemic practices of some existing community"? Or do you mean "political" in the sense of "implicitly or explicitly intended to influence the behavior of political actors and institutions"? Or both? Kuhn makes a far better case for the former than the latter.
 

Brian: Thanks for the response, I tried to be succinct with a rather broad set of understandings, and I think your questions are very helpful.

Let me start with the Popper/Kuhn argument first. In terms of why paradigm construction and collective belief is "political," I am tempted to put it this way: when you engage in a conversation with yourself about truth claims, no matter what the arguments are, it is a question of combining your judgment (about which version of p is the one that cannot be improved upon) with your will (which must be willing to accept the ruling of judgment). For the individual, this process can be difficult in and of itself, and the very reason that an ethos like Popper's or Misak's or Quine's is valuable is not for its judgment, but as a rule for disciplining the will.
For the group, which has no collective will or collective judgment, the problem is much more challenging. This is a particularly difficult problem as the individual needs to rely on the sources of others in the community outside of themselves in order to facilitate his or her own judgment.
Thus, the relationship between one's decision-making process with that of the group will be embedded in layers of trust, reciprocity, rewards, and disincentives... in short, politics.

The problem of ideology in the modern age is that it makes claims on the "real interests of all" without bothering to ask those for whom it is acting to engage in any type of decision-making about the subject. Symbols are floated, elites act in the name of the people, declare enemies of the people, stifle the facts that contradict the so-called "will of the people", and so on and so forth. The French and Russian revolution proclaimed an obedience to a concept of history, the planners of the Vietnam War to a "domino theory," and so on. Beyond the egregious examples, the idea of progress in the progressive movement, the idea of originalism in Constitutional thought, legalism in the law in general, nativism in outrageous claims from anything to the immigration debate to resistance of American journalists to soccer's growing popularity.
All share in common the undying faith in the infallibility in certain rules that are no more than images, symbols or metaphors. And in the face of real world facts to the contrary, the ideologies hide from them in communities of believers and the faith that somehow the facts must be what's wrong.
We all need ideologies and image systems to fill in the "unknowns of the universe" that we cannot do ourselves. Lippman wrote that the difference between good and bad stereotypes was a question of being willing to admit their inadequacies. Political parties sell people not simply a set of ruling members, but also a means of interpreting the world through a series of platitudes by which one need not feel embarrassed in believing, because there are an entire legion of people who have bought the same thing and are equally unwilling to look as though they exercised bad judgment. Again to paraphrase Lippman, politicians and media outlets are not the best places to form stereotypes, because they have other interests besides accuracy, and they are too slow to be rewarded for accuracy or punished for inaccuracy. All of this is to say, I think we need a more serious look at the relationship between speech, judgment, and will if we are to truly parse out the full implications of the types of problems that Professor Levinson is looking at.
 

I don't have time to offer a full response to Steven's comments--indeed, it could fill a whole book--but I do want to say that I agree with the assertion that no structure of government may be able to solve the problem of the increasing importance of technical knowledge and the inability of ordinary laypeople--whether the citizenry, legislators, or presidents (not to mention judges)--to have the basis to make informed judgment about the issues of the day. Thus the temptation to reduce politics to "values" or buzzwords that disdain the relevance of "experts." The Progressive Age, of course, put way too much faith in experts, and most of us are properly skeptical of the ability of experts (as with judges) to separate their expert judgment from their political preferences. But, for all of my call for more "democracy" in our political system, I wouldn't count myself a real "populist" if that means, as it sometimes does, a disdain for expert judgment.
 

Prof. Levinson: “I'm actually not a big fan of David Brooks. But I see no particular reason to traduce him personally.”

tra duce To malign a person or entity by making malicious and false or defamatory statements.

http://en.wiktionary.org/wiki/Traduce

I agree. One should not traduce any person (or entity). Among the most objectionable aspects of Brooks’ recent column on the Libby/Bush affair is that it traduces-“malign(s)... by making malicious and false or defamatory statements” - just about every person and institution remotely connected with the case. Below are excerpts from Brooks’ article, and some related observations.

Brooks’ “ ‘Plamegate’ in a Nutshell”:

In retrospect, Plamegate was a farce in five acts. The first four were scabrous, disgraceful and absurd. Justice only reared its head at the end.

Brooks on Joe Wilson, Valerie Plame, FitzGerald, and Walton

The drama opened, as these dark comedies are wont to do, with a strutting little peacock who went by the unimaginative name of Joe Wilson.

Wilson established himself as the charming P.T. Barnum of the National Security set, an inveterate huckster who could be counted on to wrap every actual fact in six layers of embellishment.

By the start of Act Three, nobody cared about the outing of a C.I.A. agent. ... And all that was left of Joe Wilson and Valerie Plame were the creepy photos in Vanity Fair.

As Joe Wilson was an absurd man with a plain name, Scooter Libby was a plain man with an absurd name....Libby was the only normal person in the asylum.

Fitzgerald, having lost all perspective, demanded Libby get a harsh sentence as punishment for crimes he had not been convicted of.

The judge, casting himself as David against Goliath, demonstrated an impressive capacity for talking about himself.


I agree that reasonable people can differ over many things, however:

There is nothing reasonable in Brooks’ article. It’s a string of epithets, calumnies, falsehoods, perverse characterizations, malicious and contemptuous insults.

The article explicitly contradicts the proposition that reasonable people can disagree, at least on this subject. About those who criticize Bush’s move, it states:

Of course, the howlers howl. That is their assigned posture in this drama. They entered howling, they will leave howling and the only thing you can count on is their anger has been cynically manufactured from start to finish.

It’s fair to say that the article does not “concede...for the sake of argument” [or anything else] “the sincerity” of any critics of Bush’s move-“howlers.” On the contrary, its states, with certainty, that critics are not sincere. I point this out as a criticism of the article, and not to promote general accusations that vocal Bush supporters do not “really believe” what they are saying. I can’t read minds, and neither can Brooks. Perhaps he believes he can-how would I know?

This comment is already overlong. I’ll merely say that Brooks the article is utterly scurrilous and reprehensible-an ethical cesspool. The full text is on David Corn’s blog, a long with a point by point rebuttal by Corn. I’m sure that my assessment of the article was informed by Corns insightful criticism.

http://www.davidcorn.com/archives/2007/07/a_memo_for_davi.php
 

I think thatI may in fact have been too generous to David Brooks,whose column was indeed scurrilous in just the ways delineated by thomas. I suspect that he is "sincere" in his frothings, but that does nothing to save his reputation as an analyst.
 

I visit this blog so many time,and every time i get some new tips and ideas from your blog, great work.
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thesis proposas
 

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